[1] This is an appeal
against the whole judgment and order of the Labour Court
(Rabkin-Naicker J) handed down on 23 August 2013.
The First
Respondent (Mr Mienies) had been dismissed by Transnet for gross
negligence following a disciplinary process. There was
no challenge
to the fairness of the procedure followed. But Mr Mienies contended
that there had been no fair reason for his dismissal.

[2] The Arbitrator, in
her award, found that there was a fair reason for the dismissal. The
review application pleaded in broad
terms was based on the contention
that the arbitrator had committed a gross irregularity or misconduct
because she had failed to
attach sufficient weight to various aspects
of the evidence before her and had made erroneous findings of facts
in various respects.
The Court a quo found that the arbitrator
had reached a conclusion that could not reasonably have been reached
on the evidence presented before
her. The court a quo singled
out two specific contentions in the review application which I set
out infra.

[3]
The Court a
quo
found that the arbitrator had “not
referred to”
evidence of alleged victimisation or concerning the mental well-being
of Mienies, or compatibility problems and recommendations
that he be
“transferred
to another depot.” The
Court a
quo
then concluded that the arbitrator’s decision was “one
that a reasonable decision-maker could not make in that she failed to
take relevant evidence into account when considering the
substantive
fairness of the dismissal.”
It was also found that it was “not
evident from her award that [the arbitrator] considered the personal
circumstances of Applicant or his years of service in coming
to her
decision that the dismissal was substantively fair.” The
Court a
quo thus
set aside the arbitration award and substituted it with an order that
Mr Mienies be reinstated with retrospective effect.

A brief factual matrix

[4] Mr Mienies had a
troubled employment history with Transnet. He had previously been
dismissed but reinstated by an arbitrator
in April 2008. Some 18
months later, he was again found guilty of serious misconduct
involving malicious damages, negligence and
dishonesty and was issued
with a final written warning letter valid until 12 January 2010.

[5] In 2011, Mr Mienies
was transferred to Transnet’s employee wellness programme (EWP)
by management to receive counselling
for absenteeism. Mr Mienies had
on-going problems with his immediate supervisor, one Mr Kisten. In
the latter regard, Mr Mienies
had referred a number of grievances
against Mr Kisten. Both Mr Kisten and his Manager, Mr Nel were of the
view that Mr Mienies
had established a pattern of responding to
disciplinary action against himself by referring a grievance.

[6] Even in the instance
of misconduct currently under discussion in casu Mr Mienies
did lodge a grievance against Mr Kisten. According to the record of
proceedings, the latter grievance was investigated
and was found to
be without merits. It is important to mention that at the time of his
dismissal (according to record of proceedings),
Mr Mienies was facing
a range of other complaints of misconduct which were overtaken by his
dismissal.

[7] The misconduct that
led to Mr Mienies’ dismissal involved two separate incidents in
which he had installed window panes
allegedly negligently. In the
first instance (11 July 2011), he had installed four window panes in
the “back panes”
– three of these fell out the
following day. Mr Mienies told the Area Manager, Mr Waja that the
window panes had fallen out
because of poor quality putty. At
arbitration, Mr Mienies stated that he had fastened the windows
securely with wire to allow the
putty to dry and that there were
other people working in the area who could have caused the damage.

[8] Mr Kisten’s
evidence was that: Mr Mienies had failed to “activate”
the putty by mixing it according to instructions
given on the putty
package; that Mr Mienies had failed to secure the windows properly;
and had failed to put up signage indicating
that the window panes
were recently installed and the putty drying. Mr Mienies asserted
that he had never previously installed
windows and could not
reasonably be expected to know how to do so and that installing
windows was not part of his job. Needless
to state that there was
evidence presented on behalf of the employer to counter both
contentions advanced by Mr Mienies.

[9] In the second
instance of misconduct (31 August 2011), Mr Mienies was instructed to
install a window in the “new shed”. This was high
up and required him to use a forklift stand. According to the
evidence, the job was not properly completed in that
the putty was
badly finished and the glass pane dirty and full of marks. Transnet’s
witness and Mr Mienies gave conflicting
versions of why this was so.
Mr Dramat and Mr Nel both testified to the impact of Mr Mienies’
negligence on Transnet’s
business and workplace. Mr Nel gave
evidence on the question of consistency and on Transnet’s
approach to progressive discipline.

[10]
Mr Mienies in his founding affidavit alleges that the arbitrator
failed to “attach
sufficient weight to the fact that I advised Mr Waja that the putty
was of bad quality”.
In fairness to Mr Waja, he did testify that Mr Mienies told him that
the putty had been of bad quality. Evidence established that
fitting
windows was a straightforward task that could easily be performed and
was performed by skilled artisans (Millwrights included)
and that the
task could also be performed by less skilled employees.

The application of the
relevant legal principles

[11]
It is of importance that it be borne in mind that for a defect in the
conduct of arbitration proceedings to amount to a gross
irregularity
contemplated by section 145(2)(a)(ii) of the Labour Relations Act 66
of 1995 (LRA) on the Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others[1]grounds,
the arbitrator must have misconceived the nature of the enquiry or
arrived at an unreasonable result. A result will only
be unreasonable
if it is one that a reasonable arbitrator could not reach on all the
material that was before the arbitrator.[2]
Of course the effect of Sidumo
is that the arbitrator’s decision must fall within a range of
decisions that a reasonable arbitrator could make. The distinction
between review and appeal must at all times be preserved.[3]

[12]
Evidence must at all times be scrutinised in order to determine
whether the outcome was reasonable. But a reviewing court must
be
alert to remind itself to avoid (in the words of the Constitutional
Court) “judicial
overzealousness in setting aside administrative decisions that do not
coincide with the Judge’s own opinions.”[4]
The test is indeed stringent, the purpose being to ensure that
Commission for Conciliation, Mediation and Arbitration’s awards
are not lightly interfered with.

[13] Evidently there are
reasons in this matter that do not support the arbitrator’s
decision. Notably a doctor’s report
dated 12/10/2009 raised in
cross-examination of Mr Kisten. The report reads in part:

‘RE:
RICHARD MIENIES

D.O.B. […......]

…He was
diagnosed with a major Depressive Disorder precipitated by worsening
work stress over the last year…He has developed
worsening
depressive symptoms over the last year with depressed mood, insomnia,
anhedonia, fatigue, poor concentration and memory,
low self-esteem
and psychomotor slowing. I have started him on antidepressant
Fluoxetine 20mg daily and will continue individual
psychotherapy
until his depression resolves. He would benefit from an urgent
transfer to Portnet to prevent worsening of his depression.
If he
continues in his current post he will develop increasing impairment
of his mental, emotional and physical function with worsening
work
performance. Please attend to his transfer urgently.’

[14] There is also in the
record of proceedings a report from the Employee Wellness Programme
(EWP) addressed to the supervisor
and it reads inter alia as
follows:

‘The
wellbeing practitioner expressed the view that Richard Mienies was
upset by conditions at work, which places continuous strain
on his
emotional and physical health and that the conflict between him and
his supervisor creates stress beyond his coping capacity
all of which
negatively impacts his attendance and work performance…’

The
EWP recommended to the Management that:

(i)They
provide an unbiased facilitator to mediate between Mr Mienies and his
Manager so as to resolve their difference in a constructive
manner,

(ii)Consider
Mr Mienies’ request for a transfer to another depot as a
possible solution to the problem.

[15] It is true as the
Court a quo found that the arbitrator did not refer to the
evidence of alleged victimisation or that pertaining to the mental
condition of
Mr Mienies. There is hardly a reference to the
compatibility problems that surfaced and the recommendations that Mr
Mienies be
transferred to another depot. The arbitrator did not also
refer to the EWP report’s recommendations when deciding on
whether
the sanction of dismissal was fair. Clearly, relevant
evidence or material placed before the arbitrator was ignored
completely.
Clearly, Mr Mienies was dismissed because he did not
possess mental or attitudinal wherewithal (through no fault on his
part) to
perform his duties properly. The question is whether Mr
Mienies failed to meet the standard expected by the employer. The
evidence
led before the Commissioner while sufficient to pronounce a
finding of guilt, did not provide a rational justification for the
decision to dismiss Mr Mienies.

[16]
I agree with the view expressed by the Supreme court of Appeal that
if employees display shortcomings in the performance of
their duties,
fairness requires that those employees should not only be informed
that their performance is deficient and in what
respects, but also
that the employees should be given an opportunity to improve.[5]
Mr Mienies should have been given an opportunity to improve his
performance. One such ways to help him would have been to have
regard
to the doctor’s report namely to transfer him to Portnet in
order to prevent the worsening of his diagnosed depression.
It is
difficult to understand how the doctor’s warning in this regard
was ignored. The doctor warned in the report quoted
above that if Mr
Mienies continues in the post he “will
develop increasing impairment of his mental emotional and physical
function with worsening work performance.”

[17]
As John Grogan explains: “This
is where substantive and procedural aspects of dismissals for poor
work performance begin to merge. …The procedure for
dismissals
for poor work performance requires that the employee should be
counselled, monitored and offered assistance before the
contract is
terminated. This self-evidently implies that the employee must be
given an opportunity to improve.”[6]

[18]
In Herholdt
v Nedbank Limited(Herholdt),[7]
the Supreme Court of Appeal in deprecating the process-related
approach emphasised that the proper approach in reviews was to
examine the “outcome” of the award and consider whether
the result was unreasonable. In fact, in Herholdt,
the test was set out as follows:

‘…For
a defect in the conduct of the proceedings to amount to a gross
irregularity as contemplated by s145(2)(ii), the arbitrator
must have
misconceived the nature of the enquiry or arrived at an unreasonable
result. A result will only be unreasonable if
it is one that a reasonable arbitrator could not reach on all the
material that was before the arbitrator.
Material errors of fact, as well as the weight and relevance to be
attached to particular facts, are not in and of themselves
sufficient
for an award to be set aside, but
are only of any consequences if their effect is to render the outcome
unreasonable.’[8](Underlining
added).

It
is important to bear in mind that the conclusion reached must account
for all the evidence adduced. No evidence may simply be
ignored.[9]
If both the Doctor’s report and the report by EWP were
considered by the arbitrator at all, the punishment meted out on Mr
Mienies would have been a sanction short of dismissal.

[19] Dismissal must
always be an action of last resort. Indeed, dismissal becomes
unnecessary if, given a reasonable opportunity
and reasonable
assistance, the employee can meet the required standard. Obviously
dismissal would not be necessary at all if Mr
Mienies in the instant
matter was, and could have been moved to another position or another
depot as the EWP report recommended.
Thus, failure to take relevant
evidence into account when considering the fairness of the dismissal
in this matter renders the
arbitrator’s decision susceptible to
being reviewed and set aside. I am of the view that the arbitrator’s
decision
in the instant matter is one that a reasonable
decision-maker could not make.

[20]
In labour matters, the Labour Court may make orders for the payment
of costs according to the requirements of the law and fairness.
Considerations the Court is obligated to take into account when
deciding whether to award costs are set out in section 162(2) of
the
LRA. The conduct of the parties is relevant where considerations of
fairness are concerned.[10] I
am mindful that the Appellant was entitled to appeal the judgment of
the Court a
quo.
In view of the conclusion reached on appeal, Mr Mienies will still be
the Appellant’s employee. An order of costs may affect
the
relationship between the two. Perhaps it is just and equitable that
no order is made as to costs.